This is Volokh's initial defense of Kunz and Coventry's failure to prevent the injustice to Logan:Alton Logan doesn't understand why two lawyers with proof he didn't commit murder were legally prevented from helping him. They had their reasons: To save Logan, they would have had to break the cardinal rule of attorney-client privilege to reveal their own client had committed the crime. But Logan had 26 years in prison to try to understand why he was convicted for a crime he didn't commit....
Lawyers Jamie Kunz and Dale Coventry were public defenders when their client, Andrew Wilson, admitted to them he had shot-gunned a security guard to death in a 1982 robbery. When a tip led to Logan's arrest and he went to trial for the crime, the two lawyers were in a bind. They wanted to help Logan but legally couldn't....
The lawyers did get permission from Wilson, to reveal upon his death his confession to the murder Logan was convicted for. Wilson died late last year and Coventry and Kunz came forward. Next Monday, a judge will hear evidence in a motion to grant Logan a new trial.
[M]y understanding is that there is indeed no exception from attorney-client confidentiality in such cases. (If a client tells you that he intends to commit a crime in the future, you may be able to turn him in, but not when he admits that he has committed a crime in the past.)Why should lawyer-client confidentiality trump justice? One line of thought (suggested by various commenters at Volokh) is that a breach of lawyer-client confidentiality might deter some clients from seeking legal counsel. Well, yes, it might deter guilty clients from seeking legal counsel. But how often is a guilty client candid about his guilt, anyway? Lawyers often defend guilty clients who haven't been candid about their guilt. Suspecting that a client is guilty and knowing that he is guilty are two different things. A lawyer who doesn't know that his client is guilty is probably better prepared, psychologically, to defend the client.
What about the excuse that professional ethics prevent lawyers from breaching attorney-client privilege? That excuse merely begs the question, in that codes of ethics are written and approved by lawyers.
Volokh has since penned a second post on the subject:
So, the bottom line (for Volokh) seems to be the "bottom line." But this still begs the question. Lawyers could change their code of ethics to allow for cases similar to that of Alton Logan. Having thusly changed the code, a breach of attorney-client privilege (where warranted) would not result in disbarment and might not cause a loss of income. (Even where it might cause a loss of income, there is no argument in equity for Volokh's position, as I explain below.)Some reactions to my "a classical ethical bind for lawyers" post suggested that the ethical question was easy:
The lawyers whose client had said he committed a murder should have revealed that information in order to free the person who was wrongly imprisoned for that murder, even assuming that would have meant disbarment or long-term suspension for violating lawyer-client confidentiality. If they didn't do this, they'd be acting unethically.
But even assuming that the underlying confidentiality rule is unsound, surely it's not so clear that people have an ethical duty to save another's life at such great expense. My guess is that if you spent $10,000, you could likely save the life of some sick child in Africa; if you spent $50,000, I imagine this would be even likelier (and perhaps the number is actually a lot less). If you donated a kidney — which will expose you to a roughly 0.03% risk of death, and a slightly larger but still very small risk of complications — you could dramatically reduce a roughly 20% or more risk of death for someone on the kidney waiting list (since that's how risky it is for him to be on long-term dialysis while he's waiting for a new kidney). If you find someone who's near the tail of the waiting list, you might reduce a still greater risk. Yet most of us wouldn't say, I think, that it's really your ethical obligation to run such a risk, or bear such a cost, to save a stranger's life.
Likewise, I don't think that it's really your ethical obligation to lose what is likely hundreds of thousands of dollars in future income, by giving up a profession that you spent over a hundred thousand dollars to train for. You might deserve credit for making such a choice (assuming we conclude that the ethical rule you're violating is indeed unsound). But that's different from saying that you have an ethical duty to make that choice.
Moreover, a change in the legal code of ethics to allow exculpatory breaches of confidentiality would instill greater confidence, not less, in the legal system. The public, on the whole, would be more inclined to believe that lawyers (especially criminal defense lawyers) serve justice. The case of Alton Logan reinforces the contrary perception, namely, that law is not justice.
I would go one step further in the interest of justice. I would make it a crime for a lawyer to withhold information that might exculpate a non-client for the sake of protecting a client. The law would then serve justice.
What about Volokh's argument that lawyers (among others) do not have "an ethical duty to save another's life at ... great expense"? Suppose, for example, that lawyers who breach confidentiality in a circumstance allowed by their profession's (revised) code of ethics and mandated by (revised) statutory law would nevertheless lose all of their remaining clients. Given that, Volokh argues (in effect), it would be equitable to force the rich to save the lives of starving African children, and to force anyone who has two healthy kidneys to donate one of them to a person who is on a kidney waiting-list.
Here's my answer: A lawyer who withholds exculpatory information commits a harm; that is, he causes someone to be punished wrongly for a crime. That is not the case with a person who doesn't give money to starving African children or who doesn't donate a kidney to a person in need of one. The harm (starvation or kidney failure) isn't caused by the person who withholds the money or kidney.
In sum, Volokh's defense of Kunz, Coventry, and their ilk is fatally flawed. It begs the question and poses false analogies. One might say that Volokh is being lawyerly.
